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||Neutral Citation Number:  EWHC 1035 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||10 May 2006
B e f o r e :
THE HONOURABLE MR JUSTICE SILBER
|| THE QUEEN on the applications of MAHMOUD BAIAI & IZABELA TRZCINSKA
LEONARD BIGOKU & LULJETA AGOLLI
||THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS
Ramby De Mello, Satvinder Singh Juss and Adrian Berry (instructed by David Tang & Co) for Mahmoud Baiai
Manjit Gill QC, Ramby De Mello, James Collins and Adrian Berry (instructed by Sheikh and Co) for the other Claimants
Monica Carss-Frisk QC and Angus McCullough (instructed by Treasury Solicitor) for the Defendant
The Intervener was neither present nor represented at the damages hearing.
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Honourable Mr Justice Silber:
- These claims for damages arise after each of the claimants had brought successful applications for judicial review against the Secretary of State for the Home Department ("the Secretary of State") challenging a regime (which I will refer to as "the section 19 regime"), which was introduced by sections 19 to 25 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 ("the 2004 Act") together with the Immigration (Procedure for Marriage) Regulations 2005 ("the 2005 Regulations") and the Immigration Directorates' Instructions ("the Guidance") under which they had to apply for a Certificate of Approval ("COA") to get married. The full background is set out in my judgment ("the first judgment") of 10 April 2006 ( this is 823 (Admin)) and everything set out in it should be regarded as incorporated in the present judgment.
- The relevant conclusions of the first judgment were that the section 19 regime was incompatible with first article 12 of the European Convention on Human Rights as it was not proportionate and second article 14 of the ECHR on the grounds that it discriminated on the grounds of religion and nationality. It was then necessary to consider the claimants' applications for damages. Mr. Manjit Gill QC for the claimants originally sought to postpone the assessment of the damages until after the determination of the appropriate EU claims even though those claims have not been considered. In any event, there is likely to be a substantial delay before the liability aspects of the EU claims could be heard not least because they might have to be deferred until after the European Court of Justice has determined another similar case. In addition, there were no cogent reasons why the claims for the assessment of the claims for the ECHR damages should have been postponed. I therefore decided to consider those claims. When the hearing for damages took place on 24 April 2006, Mr. Gill later said that he was ready to proceed.
- Indeed after the first judgment was handed down, the claimants put in a number of witness statements explaining their claims and they also served, as did the Secretary of State's counsel, detailed written skeleton arguments for which I am grateful, relating to the assessment of the claimants' damages for breach of their rights under articles 12 and 14 of the European Convention on Human Rights ("ECHR"). Those claims have been resisted by the Secretary of State and I considered them on the basis that these rights of the claimants have been infringed. At the end of the hearing, I announced that there would be no orders for damages for Mr. Bigoku, Ms Agolli and Ms Tilki for reasons which I would give later and which I now give together with my decision on the claims of Mr. Baiai and Ms Trzcinska. I will also refer to the claimants by the names which they had at the time when their claims were made although two of the female claimants have since married. For the purposes of this judgment, it was assumed, but not decided, that Mr. Baiai and Ms Trzcinska were entitled to claim for damages. Indeed, as I will explain in the Appendix to this judgment, the Secretary of State now wishes me to determine whether he was entitled to refuse Mr. Baiai's request for a COA.
II. The Dispute
- To understand the dispute, I must stress four matters of which the first is that in the first judgment, as I explained in especially paragraphs 1 and 39 of that judgment, I was focussing on the whole of the section 19 regime which encompasses not only sections 19 to 25 of the 2004 Act but also the 2005 Regulations and the Guidance. Indeed the complaints of the claimants related to the operation of the whole regime.
- The second matter to be emphasised and which flows from the previous point is that the far-reaching practical effects of the new regime mean (as I explained in paragraph 16 of the first judgment) that irrespective of the evidence that they could put forward to show that they are not entering into sham marriages, applicants, who first do not have a valid right to enter or remain in the United Kingdom beyond a short term status (i.e. more than six months with more than three months remaining at the time of the application for the COA); or second have an initial application for immigration status or an appeal outstanding for 18 months; or third have compelling compassionate circumstances, which make it unreasonable to expect the couple to travel and marry abroad, are expected and required to travel and marry abroad and then thereafter apply for entry clearance for marriage in the United Kingdom. In many cases, this might lead to substantial delays before the applicant can return to the United Kingdom.
- Third, the regime does not apply to those who marry in Anglican church ceremonies but there is no assertion or evidence explaining why those who marry in non-Anglican religious ceremonies are more likely to engage in sham marriages than those who marry in Anglican church ceremonies. Finally, even with the substantial deference owed to the Secretary of State, the regime infringes Convention rights but furthermore, I doubt if deference is owed when, as in the present case, there has been no consideration of the issue of whether those who marry in non-Anglican religious ceremonies are likely to engage in sham marriages any more than those who marry in Anglican church ceremonies.
III. The Claimants
(i) Mahmoud Baiai and Izabela Trzcinska
- In the case of these claimants, I will set out the facts relating to them which were before me at the hearing on 24 April 2006 even though counsel have sought to put in further information about them after the hearing. As I will explain, I have now been asked to consider whether the Secretary of State was entitled to refuse a COA in this case and I will resolve this issue in the light of further submissions. It might well be that the facts set out in this judgment relating to these claimants are incorrect but that will not effect their right to claim damges. Mahmoud Baiai is an Algerian, who was born on 2 September 1971. On his own account, he entered the United Kingdom illegally in February 2002, and he has remained here illegally since then, without having made any attempt to regularise his immigration status although he has now produced a document dated 4 January 2006, which authorises his "(further) temporary admission" to the United Kingdom. Izabela Trzcinska is a Polish national, born on 27 July 1979, who is working in the United Kingdom following Poland's accession to the EU and so she is an EEA/EEC national. She arrived in July 2004.
- Mr Baiai states that he met Ms Trzcinska on 13 August 2004 at the Hogshead public house where she was working. Mr Baiai states that they "decided to start a relationship together in or about early October 2004" and a joint tenancy agreement starting on 11 October 2004 was produced.
- Under cover of letter dated 31 January 2005, Mr Baiai applied to the Home Office for a COA. The Secretary of State for the Home Department refused that application by letter dated 15 February 2005 and he says that it was on the basis that he did not have a passport or document with a valid leave to remain in the United Kingdom and that there were no exceptional or compassionate reasons. This claim for judicial review of that decision (CO/1460/2005) was issued on 8 March 2005. As a result of the first judgment, the Secretary of State agreed to reconsider Mr Baiai's claim and at the hearing on 24 April 2006, I was informed that on 11 April 2006, the Secretary of State had written to Mr. Baiai's solicitors asking for further information, which had not been provided as at 24 April 2006.
(ii) Leonard Bigoku and Luljeta Agolli
- Leonard Bigoku is a national of the Former Republic of Yugoslavia and comes originally from Kosovo being of Albanian ethnicity. He was born on 13 March 1973 and he arrived in the United Kingdom on 28 October 1998 before applying for asylum on the next day. He was granted Exceptional Leave to Remain ("ELR") for one year on 19 July 1999, under a concession then in force, without prejudice to his asylum claim. His ELR expired on 19 July 2000. Mr Bigoku was interviewed by the Home Office on 7 June 2001. Mr Bigoku's asylum claim was refused on 6 January 2006. The decision was sent to his solicitors that day by recorded delivery.
- Luljeta Agolli is a national of the Former Republic of Yugoslavia originally coming from Serbia and is of Albanian ethnicity. She was born on 5 June 1984. The Secretary of State is not aware of the date on which she arrived in the UK but she was granted ELR on 31 January 2003, which is to expire on 31 January 2007.
- Mr Bigoku and Ms Agolli decided to get married and when they attended the Newnham Civic Centre in mid February 2005, they were told that as they were asylum seekers, they needed permission to get married. They subsequently applied for separate COAs on 13 May 2005. There followed a regrettable delay in considering their applications. They then issued judicial review proceedings (C0/6908/2005) on 2 September 2005. Both the claimants' applications for COAs were granted on 15 September 2005 with the COAs expiring on 15 December 2005. In the light of this decision, the claimants were invited to withdraw the claim. The claimants declined this invitation and they now wish to claim damages for the delay in giving them permission to marry. They got married on 18 November 2005.
(iii) Melek Tilki
- Melek Tilki is a Turkish national, who was born on 5 September 1987. She arrived in the UK on 8 November 2004. Ms Tilki's application for asylum was refused on 9 December 2004 but she was granted Limited Leave to Remain on a discretionary basis, which expired on 4 September 2005. No further grant of immigration status has been made and she is therefore an overstayer. Mehmet Ince is a Turkish national, born on 13 June 1970. He arrived in the UK on 11 September 2001 and was granted indefinite leave to remain on 22 July 2002.
- Ms Tilki and Mr Ince had known each other in Turkey and they are cousins. In November 2004, shortly after Ms Tilki's arrival in the UK, the claimants made inquiries of Hackney Town Registry Office for the purpose of getting married but on account of her age, she needed her parents' consent. In early 2005, Ms Tilki fell pregnant and on 11 February 2005, Ms Tilki was given the form which her parents had to sign to show their consent to her marriage. In late March 2005 her parents gave their consent to her being married. She was then told that the law had changed and that she needed the consent of the Secretary of State for which an application had to be made
- On 22 June 2005, Ms Tilki, through her solicitors, applied for a COA. The letter of application asserted that the requirement that Ms Tilki seek the approval of the Secretary of State to get married in the UK was unlawful and it invited the Secretary of State to confirm this. It was stated that in the absence of such confirmation, Ms Tilki would have no alternative but to seek judicial review.
- Ms Tilki's application was refused by letter dated 18 July 2005, the information of her pregnancy not being on the form, although the contrary is asserted in her witness statement. It seems that whatever was said on the form, the Home Office was sent a bundle of medical records, which showed that Ms Tilki was pregnant. Ms Tilki's LLR expired on 4 September 2005 and judicial review proceedings (CO/7442/2005) were issued on 19 September 2005. The acknowledgement of service and summary grounds were served on 29 September 2005. On the same day, Ms Tilki was on compassionate grounds granted a COA, expiring on 29 December 2005.She was invited to withdraw her claim for judicial review in the light of the grant of the COA, but she is still pursuing her claim for damages on the grounds of the delay in granting her a COA. Ms Tilki gave birth to her daughter on 11 October 2005 and she got married on 17 November 2005, which she says was the earliest available date when in early October 2005 she sought to book a date for her wedding. I will explain later why she claims damages for the delay in being able to get married.
IV. The Basis of the Claims for Damages
- Mr Manjit Gill QC on behalf of the claimants contends that in this case, the claimants have suffered first clear pecuniary loss in the form of their obligations to pay the fees of £135 in support of their applications for a COA and second such serious distress, worry and mental suffering as to entitle them to general damages. He contends that the Secretary of State's conduct constitutes, in the words of his written skeleton argument, "a deliberate and completely groundless violation on a discriminatory basis in respect to the most serious grounds under article 14 religion and nationality". Mr. Gill states that this is not a case of a public body struggling to do the best it can in the allocation of scarce resources in circumstances where the extent of its policies of obligations is in itself under scrutiny.
- Mr. Gill submits that in this case, his complaint is more serious because it involves, again in the words of the written skeleton argument, "the public singling out of a category of people on the basis of their nationality and religion". He points out that the most important feature of this case is that there has been a finding that the section 19 regime constitutes direct discrimination on grounds of religion and of nationality because the rights of the claimants to marry have been deliberately impeded by the section 19 regime, which also has been found to be incompatible with articles 12 and 14.
- According to Mr. Gill, the distress, anxiety and stress felt by each claimant is substantial. In the cases of Baiai and Trsczinska, he submits that they have been particularly distressed because the Secretary of State was until the time of the first judgment and even now is still treating their general relationship as an intended marriage of convenience simply because of first their immigration status as third country nationals and second their religious status. The other claimants according to Mr Gill are distressed by the delay which have occurred because the existence and the operation of the section 19 regime means that they have not been allowed to marry earlier in accordance with their wishes. He attaches weight to the contents of the claimants' witness statements served after the first judgment was handed down and to which I will refer shortly.
V The Statutory Provisions on Damages.
- Sections 6 to 8 of the Human Rights Act 1998 ("HRA") are the relevant sections and they provide in so far as is material that:
"6. Acts of public authorities.
(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently;
or (b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section 'public authority' includes-(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature…".
(1) A person who claims that a public authority acted (or proposes to act) in a way which is unlawful by section 6(1) may-(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act"….
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act…
8. Judicial remedies.
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including-(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision(of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining-(a) whether to award damages, or (b)the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention….
(6)In this section-'court' includes a tribunal; 'damages' means damages for an unlawful act of a public authority; and 'unlawful' means unlawful under section 6(1)".
V. The Claims for Pecuniary Loss.
- Each of the claimants seeks to recover the fee of £135 paid by them to the Secretary of State as the charge levied for submitting their application forms for a COA. This claim is disputed by the Secretary of State first on account of section 6 (2) of the HRA and second because these sums would have had to have been paid even if the Secretary of State's regime did not interfere with the rights of the claimants.
(ii) Section 6(2) of the HRA
- Miss Carss-Frisk for the Secretary of State contends that:
(a) this claim is based on section 6 (1) of the HRA, which, as I have explained, makes it "unlawful for a public authority to act in a way which is incompatible with the Convention right":
(b) under section 6 (2) of the HRA, it is provided that section 6 (1) of the HRA does not apply to "an act if (a) as a result of one or more provisions of primary legislation, the authority could not have acted differently";
(c) the Secretary of State was obliged to levy a charge because of the provisions of section 25 of the 2004 Act; and
(d) thus no claim for damages can be brought against the Secretary of State in respect of the claim for recovery of the fee of £135 as he in the words of section 6(2) of the HRA "could not have acted differently" in charging this sum to the claimants.
- There is no dispute about steps (a) and (b) but I am unable to accept (c) because section 25 of the 2004 Act did not compel the Secretary of State to charge fees but it gave him a discretion first to charge fees, second to fix the fees payable, third to exempt the payment of fees, fourth to reduce the fees payable and fifth to refund the fees payable. Section 25 in so far as is material provides, with emphasis added, that:
"The Secretary of State may make regulations requiring a person seeking [a Certificate of Approval]-…
(b) to pay a fee.
(2) The regulations shall, in particular, specify-…
(b) the amount of the fee.
(3) The regulations may, in particular, make provision-
(a) excepting a specified class of persons from the requirement to pay a fee;
(b) permitting a specified class of persons to pay a reduced fee;
(c) for the refund of all or part of a fee in specified circumstances.
- In other words, the Secretary of State cannot resist the claims for recovery of the fees on the basis that he "could not have acted differently" as he could, if he wished, not have charged any fee for the COA or he could have exempted the claimants from paying the fee or he could have reduced the fee payable by them.
(iii) Would the claimants have had to pay the fee of £135 even if the Secretary of State had complied with their Convention rights?
- The case for the Secretary of State is that even if he had complied with the Convention rights of the claimants, they would a still have had to pay the fee of £135 for a COA. In Anufrijeva and another v Southwark London Borough Council  QB 1124, Lord Woolf CJ giving the judgment of the Court of Appeal explained, with emphasis added, that:
"59…The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitutio in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded…"
- In my opinion, the Secretary of State could quite properly have operated a system for proper scrutiny of marriages for which the claimants would have had to pay £135 without infringing the Convention rights of the claimants. As I explained in my first judgment,
(i) "In my view, the jurisprudence of the European Commission on Human Rights permits the introduction of legislation for the purpose of avoiding immigration control notwithstanding that this legislation might interfere with the right to marry." (paragraph 57 of the first judgment);
(ii) "…'the legislative objective [of preventing sham marriages entered into so as to avoid immigration control] is sufficiently important to justify limiting the fundamental [article 12 right]'" (paragraph 73 of the first judgment);
(iii)"...the article 12 claim succeeds as the section 19 regime is not proportionate and it constitutes a substantial interference with article 12 rights…"(paragraph 110 of the first judgment) and
(iv) "...the article 14 claim has to succeed because of the absence of justification" (paragraph 150 of the first judgment).
- I consider that the Secretary of State was entitled to impose a system of scrutinising marriages by those subject to immigration control without infringing the article 12 and article 14 rights of those affected provided that the system was first proportionate and second not discriminatory. In that event, the Convention rights of the claimants would not have been infringed and my task is to consider how the claimants have been prejudiced as far as the cost of applying for permission is concerned by not having had such a system in place or in the words of Lord Woolf in Anufrijeva (supra) quoted in paragraph 25 above, how to ensure that the claimants "are placed in the same position as if [their] Convention right[s] had not been infringed".
- The Secretary of State would in my view then have been entitled first to have in place a proportionate and non-discriminatory system for requiring consent for marriages by those subject to immigration control in the light of the problems with sham marriages, which I described in paragraph 71 of the first judgment and second to charge those who applied for consent. Miss Bennett explained in her witness statement that Treasury Guidelines require the Secretary of State to charge for processing applications and I accept that evidence. Indeed I pointed out in paragraph 108 of my first judgment that the Secretary of State charges £335 for the applications for an extension in the stay in the United Kingdom as a spouse or unmarried partner of a person resident and present in the United Kingdom using form FLR(M).
- A. If the Secretary of State had imposed, as he was and is quite entitled to do, a proportionate system of scrutiny for sham marriages, it seems that there could have been no valid and rational objection to a charge of £135 for it. In that case, in order to obtain consent to marry, each of the claimants would have had to pay this sum or perhaps a larger sum on account of the extra work needed to process and appraise their applications with the consequence that the claimants would not have been worse off financially than they are now. This means that the claimants are not entitled to recover the fees of £135.
- B. I add that Mr. Gill had contended that the payment was not only incompatible with the claimants' rights but also illegal and unlawful but I am unable to accept that submission. The effect of a declaration of incompatibility is that, in the words of section 4(6) of the HRA, it "(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and (b) is not binding on the party to the proceedings in which it is made". In consequence the provision for payment of the £135 fee cannot be regarded as illegal or unlawful vis-à-vis the claimants. Even if this point is incorrect, the £135 fees would still be irrecoverable under the HRA provisions relied upon by Mr. Gill because of the approach of Lord Woolf, which I quoted in paragraph 25 above.
VI. Non-Pecuniary Loss: Damages for Distress, Humiliation etc
- As I have explained, Mr. Baiai and his partner are claiming damages because they have been unable to get married although their applications are now being actively reconsidered by the Secretary of State while the other claimants are claiming damages for the delay in being able to marry. All the claimants are claiming damages for the distress and humiliation, which they contend has been caused to them by the section 19 regime and the way in which they have been treated under it. The Secretary of State resists this claim on the basis first that in the light of the legislation, in the words of section 6(2) of the HRA, he "could not have acted differently" and second that the declaratory relief which I have granted should be "just satisfaction" for the claimants.
- Before dealing with those submissions, it is necessary to stress the limited circumstances in which damages should be awarded for breaches of Convention rights. Lord Woolf explained in Anufrijeva (supra), with my emphasis added that:
"60. None of the convention rights in Section 1 of the Convention is of such a nature that its infringement will automatically give rise to damage that can be quantified in financial terms…The primary object of the proceedings will often be to bring the adverse treatment to an end."
- Lord Woolf proceeded to refer in paragraph 70 of this judgment with apparent approval to the case of Silver v United Kingdom (1983) 5 EHRR 347 in which the European Court of Human Rights concluded at page 63 in paragraph 10 in respect of a claim for unlawful interference with correspondence by prison authorities, with emphasis added, that:
"It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage"
- More recently, Lord Bingham explained, with emphasis added, in R (Greenfield) v Secretary of State  1 WLR 673 on an article 6 claim in a speech with which other members of the Appellate Committee agreed, that:
"9. The routine treatment of a finding of violation is, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation..."
- This statement is also applicable to claims for breaches of articles 12 and 14. For violation of those articles, as damages are not in Lord Bingham's words "the routine treatment", there will have to be exceptional circumstances before damages can be awarded for violations of articles 12 and 14. These comments show that it is exceptional for a claimant to receive damages for breaches of articles 12 and 14 and Miss Carss-Frisk submitted, correctly in my view, that there is a very high threshold that has to be reached before a claimant can obtain damages for non-pecuniary losses for breaches of their article 12 and 14 rights. It would, in my view, be very unusual for damages to be awarded for breaches of either of those articles for distress, humiliation etc without there being cogent corroborative medical or other evidence adduced in support of such a claim.
- In Goodwin v United Kingdom (2002) 35 EHRR18, the European Court of Human Rights was concerned with a claim by the applicant, who was born as male but who had become a post-operative female but was still continued to be treated as a male. The applicant complained that her article 12 rights had been violated as, although she enjoyed a full physical relationship with a man, she and her partner could not marry because the law treated her as a man. The complaint was upheld and she sought £40,000 damages for her non-pecuniary loss due to her distress, humiliation and anxiety. The Court rejected the claim on the grounds that the findings of violations of articles 12 and 8 constituted "just satisfaction" even though there was no doubt that the applicant had suffered distress and anxiety in the past.
- Similarly, in F v Switzerland (1987) 10 EHRR 411 (which is considered in a different context in paragraph 49 of the first judgment), the same court rejected a claim for damages for non-pecuniary loss for breaches of his article 12 rights with the reasoning that:
"44…even if the applicant had suffered non-pecuniary damage, it was at most…during a period of eight months".
- Admittedly, there have been only a few cases in which the European Court of Human Rights or any court has had to consider whether to award damages for breaches of article 12 rights but it is still very unusual for a claimant to recover damages for non-pecuniary loss unless the distress is of exceptional gravity. Mr. Gill referred to one such case but that award had been made under a settlement arrangement made by the parties and so it is of no value as a precedent for the present case (see Selim v Cyprus (Application number 47293/99)).
(ii) Damages for Breach of the Claimants' Article 12 Rights
- In my view, there are a number of overlapping reasons why each of the claimants should not receive damages for breaches of their article 12 rights. First, I consider that in the light of the contents of the claimants' witness statements, the findings that the Secretary of State has infringed the claimants' rights should be "just satisfaction" for these claims for the distress, humiliation etc, which these claimants contend that they have suffered. The claimants' witness statements do not show that their loss reached the intensity threshold required to obtain damages for breaches of their Article 12 rights.
- The evidence that each of the claimants suffered from all or some of the following features, which individually or cumulatively showed that their claims for non-pecuniary loss did not reach the threshold needed to obtain damages for it. First, there is an absence of cogent corroborative medical or other evidence showing that any of the claimants suffered from serious or any distress of the intensity required to obtain an award of compensation especially in a case where declarations of incompatibility were made. Second, the accounts of the claimants relating to their distress and mental suffering are vague and they do not give details of, for example, either any specific medical condition that followed from their distress or of any medical or other treatment, which they sought or received. Third, the claimants are all angry, distressed and annoyed at the way in which they have been treated as a result of the section 19 regime but at the same time, they must also have been extremely worried that they or their partners only had limited rights to remain in the United Kingdom, which is where they wished to live. This uncertainty about whether they could remain in the United Kingdom must have been very troubling and a source of intense worry for the claimants especially as many of them must have been determined not to be returned to their home countries or for their partners to be returned. It is difficult to isolate from all their mental suffering the part attributable to the consequences of their article 12 and 14 rights with which this judgment is concerned. Fourth, all the claimants apparently continued to live with their partners while their applications to the Secretary of State for COAs were being considered and so this very important aspect of their lives was not being jeopardised. Finally, in all cases except those of Mr. Baiai and Ms Trzcinska, the claimants have now been able to marry and the case of Mr. Baiai and Ms Trzcinska is now being actively reconsidered. In the light of section 8 (3) of the HRA, the orders that were made after the first judgment constituted "just satisfaction" for the claimants without the need for any order for damages and I will now turn to the individual cases to point to some of the salient features of their evidence.
- It is noteworthy that of the claimants, Mr. Bigoku and Ms Agolli both obtained their COAs on 15 September 2005, which was just over four months after their initial application had been made on 13 May 2005. In their witness statement of 19 April 2006, they explain that they were told at the Newham Civic Centre in mid-February 2006 that:
"..recently the rules have changed and we cannot get married in the United Kingdom anymore and we therefore needed to go over and see our solicitor. At the Civic Centre, we were told by the staff that as we are not British citizens and we are not residents in the United Kingdom (sic). They further told us it would be extremely difficult for us to get permission from the Secretary of State to get married in the United Kingdom and as we are "asylum seekers", we may never be able to get married in the United Kingdom"
- The witness statement proceeds to state that they were "extremely distressed and sad about the news" and that this news led to a deterioration in Ms Agolli's mental condition. They however took legal advice that there was a possibility of their application for permission being refused but they could apply for judicial review in that case. It is noteworthy that Ms Agolli and Mr. Bigoku have continued to live with each other while they were waiting to get married and their worry must have to some extent been caused by the inaccurate advice which they received at the Newnham Civic Centre about the difficulty about obtaining approval for which the Secretary of State cannot be held responsible. In any event, it must not be forgotten that Mr. Bigoku's right to remain in the United Kingdom had expired in July 2000 although when waiting for his COA, he had a pending asylum claim; I believe that his right to remain in the United Kingdom must have been a source of at least as much concern to him and to his future wife as the question of when he could get married. There is no evidence of any treatment sought or received by them or any corroborative evidence of their respective medical conditions. In any event the delay of four months in obtaining their COAs has to be seen against the background that they waited for three months from the time when they were told they needed to apply for permission to marry before applying for their COA; this suggests that the delay in being able to get married was not causing them distress of sufficient intensity to entitle them to damages. In my opinion, on any view, neither he nor his wife can show the level of mental distress required to obtain damages.
- Ms Tilki received her COA on 29 September 2005 which was just over three months after her initial application. She explains in her witness statement how the Kurdish community regards it as shameful to have a baby out of wedlock, which she contends was a consequence of the delay in allowing her to marry. I am unable to agree as it was her decision to conceive a child when she was unmarried and when she could not get married without her parents' consent which she then did not have, which has caused this problem and also, significantly, the ensuing hostility to her from her own community.
- In any event, it seems that by conceiving a child by pre-marital sex, Ms Tilki was risking the wrath and fury of the Kurdish community; the US Government Country Report on Turkey attached to her witness statement explains that two Kurdish girls who became pregnant out of wedlock were killed by relatives as punishment in the form of honour killings. Insofar as she seeks to support her claim by the fact that she gave birth to a child out of wedlock that is not a matter for which the Secretary of State can be held responsible. It is now common ground that her baby has now been legitimated by her subsequent marriage as the child's father was presumably domiciled in this country at the time of the marriage (see Legitimacy Act 1976, section 2). In any event, it seems that she became pregnant in January 2005, which was well before first she obtained the requisite consent to marry from her parents in March 2005, which was in about the second month of her pregnancy and second she then delayed applying for her COA until 22 June 2005 by which time she was in about the fifth month of her pregnancy. She has not adduced any evidence of any treatment sought or received by her or any corroborative evidence of her worry and distress caused by the section 19 regime or at all. Any concern about not being married must be seen in the light of the fact that Ms Tilki must have been very worried about her precarious immigration status and the risk of her being sent back to Turkey. For all those reasons, Ms Tilki cannot show the level of suffering required to obtain damages for non-pecuniary loss.
- Mr. Baiai explains that he and his partner have been deprived of the right to be married, which is important to them as they wish to start a family. It is pointed out in his witness statement that it would be hard for them to travel to Algeria to get married as his fiancée who is a Catholic would be regarded as "an infidel foreigner". He also said that it would be hard for him to travel to Poland without a passport. Ms Trzcinska explained that it would be difficult and expensive for them to marry abroad. More recently, it has been stated in a letter exhibited to Mr. Baiai's witness statement of 22 April 2006 that both of them want to have receptions after their weddings in both Algeria and Poland, which suggests that they can both freely enter each other's country but that assertion may now have been subsequently satisfactorily explained. Again any worry which they might have about being unable to get married has to be seen against the background that Mr. Baiai is still seeking permission to remain in this country and the uncertainty over the outcome of this application and the risk of him being sent home clearly must be extremely unsettling for him. There is no evidence of any medical treatment sought or received by these claimants or of any corroborative evidence of their worry and distress caused by the section 19 regime. In my view, even taking their cases at their highest and even assuming as I have done for the purposed of this judgment that the Convention rights of Mr. Baiai and his partner had been infringed, these claimants like the other claimants cannot show the intensity of damage required to obtain damages.
- Second, even if the Secretary of State had not infringed the Convention rights of the claimants and if he had been operating a proportionate and an ECHR-compliant system of scrutinising intended marriages of those subject to immigration control, all the claimants would still have had to wait for their applications to be considered. In my view, if, as would have been perfectly proper, all applications for COAs by those subject to immigration control had to have been scrutinised by Home Office officials, this procedure would have led to delays, which might well have been much longer than those endured by the claimants in the present cases. In consequence, the claimants, who are complaining of the delay in obtaining their COAs, are not worse off than they would have been if, in Lord Woolf's words in Anufrijeva (supra), which were quoted in paragraph 25 above, "[their] Convention rights had not been infringed". This is a further reason why the claimants cannot recover any damages for breach of their article 12 rights.
- Third, I am fortified in coming to this conclusion because in the cases in which there have been findings in Strasbourg that there have been interferences with article 12 rights and to which I referred in paragraphs 48 and 49 of the first judgment, no damages were paid on the grounds that the declaratory relief was "just satisfaction". Indeed, there is no reason why in respect of the claimants' article 12 claims, there should be any result different from what Lord Bingham described in Greenfield (supra)  in the passage quoted in paragraph 33 above as "the routine treatment of a finding of violation is, in itself, just satisfaction" .
(iii) Damages for Breach of the Claimants' Article 14 Rights
- I have explained how Mr. Gill puts his case on discrimination but in the light of the authorities, the claimants are in my view not entitled to damages for interference with their article 14 rights.
- First, section 6 (2) of the HRA precludes the claimants from recovering damages for discrimination insofar as the breaches of article 14 were committed because of the terms of the section 19 regime, which had been laid down in the 2004 Act . This excluded from its scope marriages in accordance with Church of England religious rites; it is this exclusion, which is embodied in the statute, which means that there is discrimination. What is significant for present purposes is that in the light of those statutory provisions, the Secretary of State in the words of section 6 (2) (a) of the HRA "could not have acted differently" on account of the statutory provisions. The thrust of Mr. Gill's submissions was of the serious effect on the claimants of the discriminatory treatment suffered by them as people who did not wish to marry in an Anglican religious ceremony but section 6 (2) of the HRA means that the basis of this claim for compensation for that conduct against the Secretary of State disappears. Nevertheless insofar as the discrimination is based on the fee charged for applying for COAs that, as I explained in paragraphs 23 and 24 above, does not arise because of primary legislation but because of the 2005 Regulations made by the Secretary of State and so the section 6(2) defence is not applicable to him. By the same token, section 6(2) is not relevant to claims made concerning the terms of the Guidance, which were not laid down in the 2004 Act.
- Second, even if the claimants could pursue a claim for damages for breaches of their article 14 rights, their evidence does not show that in the words of the Strasbourg Court in Silver v United Kingdom (supra), which was quoted in Anufrijeva (supra) and to which I referred in paragraph 32 above the claimants' suffering "was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage".
- The article 14 claims have to focus on discrimination. The important factors set out in paragraph 39 also apply to the article 14 claims. It is noteworthy that first the claimants all apparently continued living with their partners while waiting for the COAs without apparently being prejudiced in any way in their day-to-day living by any discrimination and that second I do not accept in the absence of cogent corroborative medical or other evidence that there is cogent evidence of any anguish, distress or humiliation on their part caused by the discrimination, which I found to have existed. Furthermore, I am uncertain when the claimants were first actually aware or first appreciated that they were being discriminated against in the sense that unlike them, those who intended to marry pursuant to the rites of the Church of England were outside the section 19 regime. Although discrimination on grounds of religion and nationality deserves condemnation, it does not mean that those subjected to it are entitled to or should receive damages in cases such as the present one. In other words, the claimants' article 14 claim should be accorded what Lord Bingham described in Greenfield (supra)  as "the routine treatment of a finding of violation as, in itself, just satisfaction".
- Third, even if the Secretary of State had conducted a non-discriminatory scheme, he would have been entitled to scrutinise each of the claims and this would have led to the kind of delays and much of the worry, which were actually suffered by all the claimants. So to that extent, the claimants are not worse off than they would have been if, in Lord Woolf's words in Anufrijeva (supra), which were quoted in paragraph 25 above that "[their] Convention rights had not been infringed". It must not be forgotten that the claimants do not have a right to be married in the United Kingdom on demand and that the Secretary of State is entitled to consider the applications for those subject to immigration control to be married in the United Kingdom for the reasons, which I explained in the first judgment.
- Finally, even if the claimants are entitled to damages, they are not entitled as Mr. Gill contends, to damages of the order awarded by the municipal courts for discrimination. Miss Carss- Frisk points out that Lord Bingham of Cornhill explained in his speech in R (Greenfield) v Secretary of State  1 WLR 673, 684 with which the other members of the Appellate Committee agreed that:
"18…In calculating awards for anxiety and frustration, counsel suggested the scales of damages awarded by English courts and tribunals in discrimination cases provided an appropriate comparison.
19. None of the three English cases cited involved a violation of article 6, and to that extent they have only a limited bearing on the present problem. But there are in my opinion broader reasons why this approach should not be followed. First, the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official. Secondly, the purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg. This intention was clearly expressed in the White Paper Rights Brought Home: The Human Rights Bill (1997) (Cm 3782), para 2.6:
"The Bill provides that, in considering an award of damages on Convention grounds, the courts are to take into account the principles applied by the European court of Human Rights in awarding compensation, so that people will be able to receive compensation from a domestic court equivalent to what they would have received in Strasbourg".
Thirdly, section 8(4) requires a domestic court to take into account the principles applied by the European court under article 41 not only in determining whether to avoid damages but also in determining the amount of an award. There could be no clearer indication that courts in this country should look to Strasbourg and not to domestic precedents. The appellant contended that the levels of Strasbourg awards are not "principles" applied by the court, but this is a legalistic distinction which is contradicted by the White Paper and the language of section 8 and has no place in a decision on the quantum of an award, to which principle has little application. The court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all".
- This reasoning also applies to the present claims and so it would be wrong to award for breaches of Convention rights, damages of a similar level to those awarded for discrimination cases by the United Kingdom courts. Mr. Gill referred me to a series of awards from the Strasbourg courts for infringements of article 14 rights but he correctly ultimately accepted that the facts in those cases were totally different from those in the present cases. There is nothing in any of those cases which shows that the claimants on the facts of the present cases are entitled to any damages in the light of the relief which they have already received and that relief in my view constitutes "just satisfaction" for their complaints.
- It is appropriate to mention that there was prolonged disagreement about the terms of the order relating to the first judgment and I should explain a number of matters about the order which I made and to which I have not referred in this judgment. First, it is only Mr. Baiai and Ms Trzcinska who would appear to have EC claims but as I have not heard why the other claimants may have such claims, I have made provisions for written submissions to be made on this issue so that I can reach a final decision about this. Second, I did not regard it necessary or desirable to make any further provisions in the previous court orders for damages on any EC claims as they will be dealt with if and when those claims are considered.
- Third, the Secretary of State was not at the time of the hearing on 24 April 2006 seeking to rely on the decision under challenge to refuse COAs to Mr. Baiai and his partner but his officials were then actively examining their cases afresh; so no order is appropriate in respect of the old decision. In any event, I have not heard full argument on his immigration status (which surprisingly appears to be the subject of some controversy) or the validity of the refusal by the Secretary of State of his application for a COA if he did not have the right to remain in the United Kingdom. Since circulating this judgment, as I will explain in the Appendix, I have been asked to consider the validity of that refusal and I will do so in the light of further submissions.
- For the purpose of completeness, I should add that:
a. I have not overlooked the direction in paragraph 81(v) of Anufrijeva that in applications for damages, the parties should not cite more than three cases save in exceptional cases. The written skeleton arguments of Mr. Gill cited more than ten authorities and I did not limit him to the three cases because at that time, this application seemed to be "exceptional" because first there had been no previous English authority on damages for breaches of article 12 or of article 14 when associated with an article 12 claim, second these three applications were not identical and third, they were in the nature of test cases with other cases awaiting their outcome. In fact, it was only when I had finished hearing submissions that I realised that these cases did not raise any particular issues of importance, but that all the relevant legal principles were set out in Anufrijeva (supra) and in Greenfield (supra), which could be then applied without difficulty; and that
b. Mr. Gill tried to persuade me to follow some aspects of my decision in R (N) v Secretary of State ( EWCA 207 (Admin)) but an appeal from that decision was allowed in an appeal heard with Anufrijeva (supra)[118- 145]. In Anufrijeva (supra), the Court of Appeal and in Greenfield (supra), the House of Lords also gave guidance on the approach to damages for breaches of the HRA, which are now determinative of the law. Thus N must no longer be regarded as good law.
- For the reasons which I have sought to explain, the orders made after the first judgment constitute "just satisfaction" for each of the claimants, who are not entitled to any damages.
The Impact of the Section 19 Regime on an Applicant, who is unlawfully present in the United Kingdom.
1. As I have explained in paragraph 30 of the first judgment, I was asked at the main hearing to resolve fourteen specific issues and many sub-issues of law but they did not focus on any features of the individual cases of the claimants. Thus, I dealt generally with the issues of compatibility of the section 19 regime with articles 12 and 14 of the ECHR. I, and I suspect all counsel, expected and anticipated that my conclusions on these general issues would resolve all issues in the individual cases.
2. It, however, became clear when dealing with the damages claims a few weeks later that there was a further issue which the Secretary of State wished to have resolved and that was to determine the impact of the section 19 regime on an applicant for a COA who is unlawfully present in the United Kingdom. It was considered that it would be helpful for me to express some views on this issue. Counsel then made written submissions on this issue, which does not affect the only outstanding substantive issue dealt with in this judgment which was the damages claims.
3. I tried my best to resolve this issue without an oral hearing and sent out my provisional conclusions when the draft of this judgment was circulated to counsel but I stressed that that they were put forward with diffidence. Counsel for the Secretary of State then asked me to consider the correctness of the decision to refuse to give a COA to Mr. Baiai. The claimants agreed with this course. I had hoped to have a further oral hearing to resolve this matter but this has not proved possible. So, I have already notified counsel that I will resolve this issue if possible on the basis of further written submissions and I have made provisional suggestions for a timetable for further evidence and further submissions so that this matter can be resolved speedily. In those circumstances, nothing would be achieved by setting out now my provisional views on the impact of the section 19 regime on an applicant for a COA who is unlawfully present in the United Kingdom.
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